45 Cal.App.5th 201
Cal. Ct. App.2020Background
- Defendant Demetrious Marcus and an accomplice committed armed robberies at an apartment; during the escape the son chased them and was shot. Marcus was convicted of two counts of first‑degree robbery (father and son), assault with a firearm, and being a felon in possession of a firearm, with multiple firearm and prior‑felony enhancements and a prior strike.
- Jury found personal use of a firearm true on multiple counts; the jury did not find true the allegation that Marcus personally discharged a firearm causing great bodily injury.
- At sentencing the court imposed an aggregate term of 29 years: a doubled term for the robbery of the father and a consecutive doubled term for the robbery of the son; the court stayed sentence on count four but did not orally state the term.
- Defendant appealed, raising (1) that the trial court erred by refusing to remove a juror who expressed safety concerns during deliberations; (2) that the court mistakenly believed it lacked discretion to impose concurrent sentences for the two robbery counts after Proposition 36; and (3) that he should be afforded resentencing consideration under Senate Bill No. 1393 to strike a prior serious‑felony enhancement.
- The Court of Appeal affirmed the convictions, rejected the juror‑misconduct claim (no demonstrable inability to perform and no substantial likelihood of prejudice), held Hendrix remains valid so trial courts retain discretion to impose concurrent sentences when crimes arise from the same occasion/operative facts, and remanded for resentencing so the trial court can exercise discretion under the three‑strikes scheme and consider SB 1393 relief; it also directed the trial court to impose and stay a full term on count four.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Marcus) | Held |
|---|---|---|---|
| 1. Whether Juror No. 7 should have been discharged for misconduct during deliberations | The record did not show a demonstrable reality that the juror could not follow instructions; admonishment cured the problem and there is no substantial likelihood of prejudice | Juror expressed inability to avoid considering victim safety/punishment, violating CALCRIM 200; removal was required and any misconduct is presumptively prejudicial | Trial court did not abuse discretion; juror credibly promised to follow instructions, admonition and reinstruction cured issue, and defendant failed to show substantial likelihood of prejudice |
| 2. Whether trial court retained discretion post‑Proposition 36 to impose concurrent sentences for multiple serious/violent felonies committed on same occasion | Proposition 36 eliminated discretion and requires consecutive sentences for multiple current serious/violent felonies | Hendrix preserved trial court discretion to impose concurrent sentences when offenses arose from same occasion/operative facts; Prop 36 did not amend the parallel provision governing that discretion | Court agrees with Hendrix/Torres line: Proposition 36 did not eliminate the sentencing discretion; vacated sentence and remanded for resentencing so court may consider concurrent sentences and all discretionary choices |
| 3. Whether SB 1393 (2019) relief to strike a prior serious felony applies retroactively | People concede SB 1393 is retroactive to nonfinal cases and remand is appropriate | Requests remand to allow trial court to consider striking the prior serious‑felony enhancement | SB 1393 applies retroactively to nonfinal cases; remand for the trial court to decide whether to strike the enhancement |
| 4. Whether the court properly imposed/stayed sentence on count four under § 654 | The court’s oral procedure left the sentence unspecified; the court must impose a full term before staying under § 654 | Defendant targets any sentencing error and seeks correction | Appellate court directs trial court on remand to impose (and then stay) a full term on count four (one‑third‑midterm in probation report was incorrect for a stayed term) |
Key Cases Cited
- People v. Hendrix, 16 Cal.4th 508 (clarified trial courts may impose concurrent sentences when multiple serious/violent felonies arise from same occasion/operative facts)
- People v. Torres, 23 Cal.App.5th 185 (analyzes effect of Proposition 36 and concludes sentencing discretion to impose concurrent sentences remains)
- People v. Gangl, 42 Cal.App.5th 58 (discusses Proposition 36; court of appeal panel split on analysis but cited for post‑Prop 36 interpretation)
- In re Hamilton, 20 Cal.4th 273 (juror impartiality standard and prejudice presumption for juror misconduct)
- People v. Alexander, 49 Cal.4th 846 (section 1089 removal authority; courts may investigate and take less drastic steps than discharge)
- People v. Echavarria, 13 Cal.App.5th 1255 (example where juror misconduct regarding sentencing information required new trial because presumption of prejudice not rebutted)
- In re Estrada, 63 Cal.2d 740 (retroactivity inference for ameliorative criminal law changes)
- People v. Cantrell, 175 Cal.App.4th 1161 (one‑third‑midterm rule applies only to consecutive sentences; a stayed sentence should be imposed in full)